Date: Mon, 02 Jun 1997 20:17:26 -1000
From: lambda@aloha.net (Martin Rice)
Subject: Baehr v. Miike, AmCuBr 05: Rutherford Institute
Aloha ahi ahi kakou.
It's getting bleary-eyed out. Please pardon any mistakes.
These Baehr v. Miike briefs will be coming at irregular intervals and
out-of-sync for a variety of reasons. I have only broadcast two so far, but
will broadcast more in the immediate future.
No. 20371
IN THE SUPREME COURT STATE OF HAWAII
NINIA BAEHR, GENORA DANCEL, ) Civ. No.91-1394-05
TAMMY RODRIGUES, ANTOINETTE ) (Injunctions)
PREGIL, PAT LAGON, JOSEPH )
MELILLO, ) APPEAL FROM THE FINDINGS OF
) FACT AND CONCLUSIONS OF LAW
Plaintiffs-Appellees, )
)
vs. ) FIRST CIRCUIT COURT
)
LAWRENCEH.MIIKI,inhis )
official capacity as Director ) THE HONORABLE KEVIN S.C. CHANG
of the Depart~ent of Health, )
State of Hawaii, )
)
Defendant-Appellant. )
__________________________________________)
BRIEF OF THE RUTHERFORD INSTITUTE
AS AMICUS CURIAE IN SUPPORT OF DEFENDANT-APPELLANT
OF COUNSEL: THE RUTHERFORD INSTITUTE
JOHN W. WHITEHEAD, ESQ. STEVEN H. ADEN, ESQ. (5189-0)
THE RUTHERFORD INSTITUTE DOLD LaBERGE & ADEN
P.O. Box 7482 Ste 507, Bishop Trust Bldg.
Charlottesville, Virginia 22906-7482 1000 Bishop Street
1.804.978.3888 Honolulu, Hawaii 96813
1.808.531.8886
Attorneys for Movant (Counsel of Record)
THE RUTHERFORD INSTITUTE
TABLE OF CONTENTS
STATEMENT OF THE QUESTIONS PRESENTED
DID THE PLURALITY IN BAEHR V. LEWIN ERR IN APPLYING THE STRICT
SCRUTINY STANDARD OF REVIEW, RATHER THAN THE RATIONAL BASIS
STANDARD, TO THE DIRECTOR'S DECISION TO DECLINE TO ISSUE MARRIAGE
LICENSES TO APPELLEES?..........................................1
ARGUMENT
I. THE BAEHR V. LEWIN PLURALITY OPINION EERED IN
REJECTING ANY DEFINITIONAL BASIS FOR INTERPRETING
THE SCOPE OF THE "RIGHT TO MARRY"..............1
II. THE DECISION OF THE DIRECTOR OF THE DEPARTMENT OF
HEALTH NOT TO ISSUE MARRIAGES LICENSES TO SAME-SEX
COUPLES DID NOT CONSTITUTE "INVIDIOUS
DISCRIMINATION", AND ACCORDINGLY THE DIRECTOR'S
DECISION IS NOT REVIEWABLE LNDER THE STRICT SCRUTINY
STANDARD......................................4
A. The Director's Decision Not to Issue Mairiage Licenses
to Appellees Did Not Infringe on Any "Fundamental Civil Rights" of the
Appellees...........................................5
B. The Director's Decision Not to Issue Marriage Licenses
to Appellees Was Not Based Upon Their Membership in Any Suspect Class
....................................................6
III. REVIEWED UNDER THE RATIONAL BASIS STANDARD OF
REVIEW, THE DIRECTOR'S DECISION IS SUPPORTED BY MORE
THAN ADEQUATE EVIDENCE IN THE TRIAL COURT BELOW
..............................................9
CONCLUSION....................................................9
TABLE OF AUTHORITES
i. Hawaii Case Law Authority
Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993).1, 2, 5 - 7, 10
Fujioka v. Kam, 55 Haw. 7, 514 P.2d 568(1973)..............5, 7
Hasegawa v. Maui Land and Pineapple Co., 52 Haw. 327, 475 P.2d
679(1970)..................................................4, 9
Hawaii State AFL-CIO v. Yoshino, No.20267 (March 24, 1997).1, 9
In re Tax Appeal of Hawaiian Land Co., Ltd., 53 Haw. 45,
487 P.2d 1070 (1971)..........................................9
Hirano v. Peabody, 81 Haw. 230, 232, 915 P.2d 704, 706 (1966).9
Mahiai v. Suwa 69 Haw. 349, 742 P.2d 359 (1987)...............7
Nagle v. Board of Education of State of Hawaii, 63 Haw. 389,
629 P.2d 109 (1981)...........................................4
Ross v. Stouffer, 72 Haw. 350, 816 P.2d 302(1991).......1, 2, 8
Shibuya v. Architects Hawaii Ltd., 65 Haw. 26, 647 P.2d 276
(1982).....................................................4, 7
State v. ROSS, 62 Haw. 147, 613 P.2d 354 (1980)...............7
State v. Mueller, 66 Haw. 616, 671P.2d 1351 (1983)............6
ii. Federal Case Law Authority
Adams v. Howerton, 486 F.Suppl. 1119, 1122, 1123 (CD. Cal.
1980).........................................................9
Antonio School Dist. V. Rodriguez, 411 U.S. 1(1973) (C.J. Burger,
dissenting)..................................................10
Bowers v. Hardwick, 478 U.S. 186 (1986).......................5
Burkeff v. Zablocki, 54 F.R.D. 626 (E.D. Wis 1972)...........10
Craig v. Boren, 429 U.S. 190 (1976).......................8, 10
Griswold v. Connecticut, 381 U.S. 479 (1995)...............3, 5
Loving v. Virginia, 388 U.S. 1 (1967)......................3, 8
-i-
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307
(1976)...................................................4, 6
Michael M. v. Superior Court, 450 U.S. 464 (1981)...........7
Rinaldi v. Yeager, 384 U.S. 305 (1966)......................4
Romer v. Evans, U.S. Sup.Ct. No.94-1039 (May 20, 1996)...4, 6
Schlesinger v. Ballard, 419 U.S. 498 (1975).................8
Skinner v. Oklahoma, 316 U.S. 535 (1942).................5, 6
Stanton v. Stanton, 421 U.S. 7 (1975).......................8
iii. Case Law Authority of Other Jurisdictions
Anonymous v. Anonymous, 325 N.Y.S. 2d 499 (Sup. Ct. 1971)..10
Baker v. Nelson, 191 NW. 2d 185, 185-186 (Minn 1971).......10
In re Estate of Cooper, 564 N.Y.S. 2d 684, 687 (Sur. Ct. 1990)
...........................................................10
Dean v. District of Columbia, 653 A.2d 307, 315 ([).C.App
1995)...................................................2, 10
DeSanto v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984)....10
Frances B. v. Mark B., 355 N.Y.S. 2d 712 (Sup. Ct. 1974....10
Jennings v. Jennings, 315 A.2d 816 (Md. Ct. Spec. App.
1974)......................................................10
Jones v. Hallahan, 501 S.W.2d 588 (Ky.Ct.App.1973).........10
In re Ladrach, 513 N.E.2d 828 (Ohio P. Ct. 1987)...........10
M.T. v. J.T., 355 A. 2d 204 (N.J. Super. Ct. Appi. Div.)...10
Singer v. Hara, 522 P2d 1187 (Wash. Ct. App. 1974).........10
Slayton v. Texas, 633 S.W.2d 934 (Tex. Ct. App. 1982)......10
-ii-
iv. Constitutions and Statutoiy Authority
Hawaii Constitution, Article 1, Sec. 5.....................7
Haw. Rev. Stats. Chapter 572-1.............................7
v. Law Review Articles
J. Van Dyke, M. Chung and T. Kondo, "The Protection of
Individual Rights Under Hawaii's Constitution," Univ. of
Hawaii Law. Rev. 311, 316-18 (1992)........................4
L. Wardle, "A Critical Analysis of Constitutional Claims for
Same-Sex Marriage," B.Y.U. Law Rev., Vol.1966, No.1, at 48
...........................................................6
"For Better or For Worse, in Sickness and in Health, Until
Death Do Us Part: A Look at Same-Sex Marriage in Hawaii,"
16 Univ., of Hawaii L. Rev. 447, p.455-460.................2
vi. Other Authorities
1972 House Journal at 353 (statement of Rep. Saiki on
S.B. No 1408-72............................................9
Black's Law Dictionary (6th ed. 1990)...................1, 2
Irving M. Copi Philosophy Professor, University of Hawaii)
and Carl Cohen, Introduction to Logic(Eighth Edition),
p.152......................................................3
Webster's Third New International Dictionary 1384
(1986)..................................................1, 2
-iii-
STATEMENT OF THE QUESTIONS PRESENTED
DID THEE PLURALITY OPINION IN BAEHR V. LEWIN ERR IN APPLYING ThE STRICT
SCRUTINY STANDARD OF REVIEW, RATHERR THAN THE RATIONAL BASIS STANDARD, TO
THE DIRECTOR'S DECISION TO DECLINE TO ISSUE MARRIAGE LICENSES TO
APPELLEES?
ARGUMENT
I. THE BAEHR V. LEWIN PLURALITY OPINION ERRED IN REJECTING ANY
DEFINITIONAL BASIS FOR INTERPRETING THE SCOPE OF THE "RIGHT TO MARRY".
The Hawaii Supreme Court's plurality opinion in Baehr V. Lewin 74 Haw. 530,
852 P.2d 44
(1993) strenuously rejected the trial court's definitional approach to the
issue of whether the scope of the
"fundamental right to marry" could be construed to include same-sex unions.
Id. at 570, 852 P.2d at 63.
However, definitional analysis is not only frequently employed by the Court,
it appears to be considered a
necessary tool of civil rights jurisprudence. For example, in Ross v.
Stouffer 72 Haw. 350, 816 P.d 302
(1991), the Court was called upon to determine whether an employer's rule
against spouses co-working in
the same departtnent constituted discrimination on the basis of "marital
status".[fn1] The dispute in Ross is a
close parallel to the issue in the instant case, in that the claimant
contended he was termated because of
his marital status, while the employer asserted he was terminated not
because of his marital status, but
because of whom he marrie4.[fn2] The Court looked to the definition of
"nepotism" in Black's Law Dictionary
and Webster's Third New International Dictionary as well as the etymological
derivation of the word, to
ascertain whether the public policy against nepotism informed the definition
of "marital status."[fn3] In dissent,
Justices Wakatsuki and Moon relied upon the "plain and ordinary meaning" of
"marital status", as well as
case law defining the term, to interpret the term.[fn4] Likewise, Hawaii
State AFL-CIO v. Yoshino No.20267
(March24, 1997), construed the meaning of state constitutional provisions in
light of the definitions of
essential terms such as "ballots cast". In fact, the plurality's own
analysis and application of the term "civil
[fn1] 72 Haw. at 352, 816 P.2d at 303.
[fn2] Id.
[fn3] 72 Haw. at 352-53, 816 P.2d at 303.
[fn4] 72 Haw. at 356, 816 P.2d at 305.
liberties" in its equal protection analysis turned upon the definition of
the term in Black's Law Dictionary,
74 Haw. at 563, 852 P2dat 60, citing Black's (6th ed. 1990) at 246.
In view of the importance of definitional analysis, it should not
engender surprise that virtually
every decision that has considered claims to same-sex marriage has relied in
whole or in part upon the
definition of "marriage" in reaching its result. See Note, "For Better or
For Worse, in Sickness and in
Health, Until Death Do Us Part: A Look at Same-Sex Marriage in Hawaii," 16
Univ. of Hawaii L. Rev
447, at pp.455-460, discussing seven such definitionally-based same-sex
marriage decisions between
1971 and 1992.[fn5] In the absence of consensus over the meaning of terms
such as "marriage" and "right to
marry", serious doubt exists whether further meaningfiil analysis can be
conducted.
The Bae[h]r v. Lewin plurality opinion attacks the argument from the
definition of marriage as
"circular" and "tautological," and therefore an "exercise in tortured and
conclusory sophistry." 74 Haw. at
565, 569-70,571, 852 P.2d at 61,63. To the contrary, to assert that
marriage should remain as society
has always defined it, as the "legal union of one man and one woman as
husband and wife," Black's
Law Dictionary (6th ed. 1990) at 972[fn6], "the state of being united to a
person of the opposite sex as
husband or wife," Webster's Third New International Dictionary (1986) at
1384, "a special relationship
between a man and a woman", Bae[h]r v. Lewin. supra, at 546, 852 P.2d at 61
(quoting Answering Brief of
Director Lewin at p.7), or "a union of a man and a woman," Id. at 566, 852
P.2d at 61 (quoting Jones v.
Hallahan 501 S.W.2d 588, 589-90 (Ky.Ct.App. 1973)) (emphases supplied in
all), is to make an
argument from the nature and essence of the institution being defined, not a
circular argument. The
[fn5] Significantly, these include the lower court's decision in Dean V.
District of Columbia. 653 A.2d 307 (D.C.Ct.App.1995). The D.C. appellate
court's affirmance of the Superior Court found that the D.C. Human Rights
Act was not violated, despite an explicit prohibition against discrirnintion
on the basis of sexual orientation: "The language and legislative history
of the marriage statute demonstrate that neither Congress nor the Council of
the District of Columbia has ever intended to define `marriage' to include
same-sex unions." 653 A.2d at 3lO.
[fn6] See Dean v. District of Columbia. supra, at 315 (relying upon Black's
definition confirm the court's understanding of the marriage statute "by the
ordinary sense and meaning traditionally attributed to the word `marriage'
when used to indicate an intimate relationship").
2
purpose of a definition is to explain the meaning that the thing being
described already has;[fn7] it is
explanatory, not normative, in that it states what a thing is regarded to
be, not what some believe it ought to
be regarded to be. For this reason, "Any definition of a word that ignores
the way in which it is used by
any sizeable group of speakers is not true to actual usage and is,
therefore, not quite correet."[fn8] A circular
definition, on the other hand, is a useless definition because it restates
the thing being defined in its
definition, e.g., "A compulsive gambler is one who gambles
compulsively."[fn9] The definition of marriage
employed by the accepted dictionary sources, the Director of Health and the
courts of other jurisdictions to
retain the traditional construct of marriage is therefore not circular
because it explicates in descriptive
terms what the essence and substance of a marriage has been regarded to be
by the majority of society. In
this regard, the contention that proponents of same-sex marriage seek to
change the definition of marriage
is literally correct.
Nor is the admittedly circular reasoning condemned in Loving v.
Virginia, 388 U.S. 1 (1967)
similar to the State's position, as the plurality suggests. The Hawaii
marriage statute is not a positive law,
but a codification of a common law estate that is "older than the Bill of
Rights." Griswold v. Connecticut.
381 U.S. 479, at 486 (1965). If the State of Hawaii were defending a
positive statute creating a new right
or restriction of the marital estate on the basis of the statute's
definition, such an argument would certainly
be tautological. Such was the case with the miscegnation statute in Loving
v. Virginia, which was adopted
in 1924 as "An Act to Preserve Racial Integrity" for the purpose of
excluding African - Americans from
marrying caucasians. 388 U.S. at 6, 7, 11 n. 11. This qualitative
distinction between the Hawaii marriage
statute and the statute motivated by racial aminus in Loving renders the
Loving analogy inapposite.
II. THE DECISION OF THE DIRECTOR NOT TO ISSUE MARRIAGE LICENSES
[fn7] Irving M. Copi (Philosophy Professor, University of Hawaii) and Carl
Cohen, Introduction to Logic (Eighth Edition), p. 152.
[fn8] Id. at pp.133-34.
[fn9] Id. at 152 (quoting Jay Livingston, Compulsive Gamblers New York:
Harper & Row, Publishers, Inc., 1974) p.2).
3
TO SAME-SEX COUPLES DID NOT CONSTITUTE "INVIDIOUS DISCRIMINATION" AND
ACCORDINGLY THE DIRECTOR'S DECISION IS NOT REVIEWABLE UNDE[R] THE STRICT
SCRUTINY STANDARD.
In the Hawaii Supreme Court's seminal equal protection decision,
Hasegawa v. Maui Land and
Pineapple Co.. the Court stated:
The guarantee of the equal protection of the laws, found in both the
Hawaii and Federal Constitutions, was not intended to interfere with the
power of the State to prescribe regulations to promote the general welfare
of the people'. Nor was it intended that the demand for equal protection
require that all laws apply universally to all persons and that they never
classify when imposing special burdens upon or granting special benefits to
distinct groups. It has been recognized that a state cannot function
without classifying its citizens for various purposes and treating some
differently from others.
52 Haw. 327, 329, 475 P.2d 679, 681 (1970 (emphasis supplied). Cf Shibuva v.
Architects Hawaii Ltd..
65 Haw. 26, 647 P.2d 276 (1982), quoting Rinaldi V. Yeager. 384 U.S. 305,
309 (1966): "To be sure, the
constitutional demand is not a demand that a statute necessarily apply
equally to all persons."
In crafting equal protection jurisprudence, the Hawaii appellate courts
have followed the United
States Supreme Court's approach of applying a heightened standard of
scrutiny to governmental classi-
fications only where such actions involve "suspect classifications" or
"flindamental rights," and a lower
"rational basis" standard where the actions do not. Nagle v. Board of
Education 63 Haw. 389, 629 P.2d
109 (1981); see generally J. Van Dyke, M. Chung and T. Kondo, "The
Protection of Individual Rights
Under Hawaii's Constitution," 14 Univ. of Hawaii Law.Rev. 311, 316 - 18
(1992). Consequently, in equal
protection analyses, the first consideration is whether a "fundamental
right" or a "suspect classification" is
implicated. "If a law neither burdens a fundamental right nor targets a
suspect class, we will uphold the
legislative classification so long as it bears a rational relation to some
legitimate end." Romer v. Evans
U.S. Sup.Ct. No.94-1039, slip op., p.10 (1996). The United States Supreme
Court elucidated this initial
inquiry with particular precision and clarity in Massachusetts Board of
Retirement v. Murgia: "[E]qual
protection analysis requires strict scrutiny... when the classification
impermissibly interferes with the
exercise of a fundamental right or operates to the particular disadvantage
of a suspect class." 427 U.S.
307, 312 (1976) (emphasis supplied). The Court's amicus argues herein that
because the decision of the
4
Direetor to decline marriage licenses to the Appellees did not burden any
cogziable~ "fundamental right" of
Appellees, and did not operate to the disadvantage of a particular gender,
the Baehr v. Lewin plurality
should not have reached the application of heightened scrutiny. For this
reason, the holding of Baehr v.
Lewin should be expressly reversed by this Court.[fn10]
A. The Director's Decision Not to Issue Marriage Licenses
to Appellees Did Not Interfere With Any "Fundamental
Civil Rights" of the Appellees Because, as the
Bae[h]r v. Lewin Plurality Opinion Acknowledges,
Appellees Have No Fundamental Right to Same-Sex
Marriage.
The Appellees claim they possess a fundamental right to choose whom
they will marry, regardless
of sex.[fn11] While the Baehr v. Lewin plurality opinion states that "it
is immaterial whether the plaintiffs, or
any ofthem, are homosexuals," 74 Haw. at 558, 852 P.2d at 58, any discussion
of same-sex mariage as a
purely platonic relationship voids the relationship of the meaning for which
Appellees seek to secure
marriage, since it denies the very foundation on which the right to same-sex
marriage is purportedly based,
that of the right to intimate association. But as the first part of the
plurality opinion in Baehr v. Lewin
amply demonstrates, the Appellees cannot be heard to argue for the
possession of any fundamental right to
that is deemed to arise out of their desire to enter into a same-sex
marriage. "[T]he applicant couples do not
have a fundamental constitutional right to same-sex marriage arising out of
the right to privacy or
otherwise." 74 Haw. at 557, 671 P.2d at 57. Nor, clearly, can they contend
that a fundamental right exists
to engage in homosexual relations or homosexual activity. Bowers V. Hardwiek
478 U.S. 186 (1986).[fn12]
[fn10] The fact that the Bae[h]r v. Lewin Court directed the court below to
employ strict scrutiny in its proceedings does not preclude the present
Court from reversing its judgment. "It is the general rule that an
appellate court should only reverse a judgment of a trial court on the legal
theory presented by the appellant in the trial court.... However, we have
also said that the rule is not inflexible and that an appellate court may
deviate and hear new legal arguments when justice requires. We also stated
that in the exercise of this discretion an appellate court should
deterinine... [inter alia] whether the question is of great public import."
Fujioka V. Kam, 55 Haw. 7, 9, 514 P.2d 568, 570 (1973) (emphasis supplied).
[fn11] E.g., Amicus Curiae Brief of Lambda Defense and Fducation Fund, Inc.
in Bae[h]r v. Lewin supra,
at p.1 (Evan Wolfson, Counsel): Same-sex couples possess an "intimate and
fundamental choice [in] exercising one's right to marry."
[fn12] The Supreme Court's reasoning in Bowers is illuminating. After
reviewing the Griswold v. Connecticut 381 U.S. 479 (1965) line of
fundamental due process right to privacy eases, which the Court noted
included Skinner v. Oklahoma 316 U.S. 535 (1942), the Court concluded: "No
connection between family,
Continued on next page...
5
"If the basic interactions that define a relationship fail to gain
protection as intimate associations, the
relationship itself cerinly cannot claim preferred constitutional status as
a marriage under the aleady
repudiated theory." L. Wardic, "A Critical Analysis of Constitutional Claims
for Same-Sex Marriage,"
B.Y.U.Law Rev., Vol.1996, No.1, at 48.
In the absence of an "impemissibl[e] interfere[nce] with the exercise
of a fimdamental right,"[fn13] the
Appellees' claim to a right to engage in same-sex marriage stands in the
same position as the right claimed
in State v. Mueller[fn14] to engage in consensual sexual intercourse for
hire in the privacy of one's own home.
Although claims to personal rights may be couched in terms of recognized
values such as privacy and
personal autonomy, governmental actions restricting or eliminating such
personal interests are subjected to
rational basis review if such rights are not "fundamental" or "implicit in
the concept of ordered liberty." 66
Haw.at 628, 671 P.2d at 1359. An example is Romer v. Evans supra, which
reviewed a Fourteenth
Amendment equal protection claim brought by homosexual Colorado citizens
under a rational basis
standard of review.
B. The Director's Decision Not to Issue Marriage
Licenses to Appellees Was Not Based Upon Their
Membership, in the Suspect Class of Sex.
The plurality in Baehr v. Lewin erred in presuming that the State's
restriction of the marital estate
to heterosexual couples constituted discrirnination on the basis of their
gender. In its opinion, the plurality
reviewed the statutory construct of the Hawaii marriage statute, Flaw. Rev.
Stats. Chapter 572-1 et. seq.,
and concluded that "[r]udimentary principles of statutory construction
render manifest the fact that, by its
plain language, HRS Sec. 572-1 restricts the marital relation to a male and
a female."[fn15] The plurality then
[continued from page 5] marriage, or procreation on the one hand and
homosexual activity on the other has been demonstrated.... Moreover, any
claim that these eases nevertheless stand for the proposition that any kind of
private sexual conduct between consenting adults is constitutionally
insulated from state proscription is unsupportable." 478 U.S. at 191. In
spite of this, the plurality cites Skirnier v. Oklahoma in its equal protection
analysis for the proposition that marriage is "one of the basic civil rights
of [men and women].'" 74 Flaw. at 563, 852 P.2d at 60, quoting Slunner 316
U.S. 535, at 541.
[fn13] Massachusetts Board of Retirement v. Murgia supra, at 312.
[fn14] 66 Haw. 616, 671 P.2d 1351 (1983).
[fn15] 74 Flaw. at 563, 852 P.2d at 60.
6
concludes, without explaining its reasoning, that this restriction is a
sex-based restriction for purposes of
equal protection analysis: "Accordingly, on its face and (as Lewin admits)
as applied, HRS Sec. 572-1
denies same-sex couples access to the marital status and its concomitant
rights and benefits. It is the state's
regulation of access to the status of married persons, on the basis of the
applicants' sex that gives rise to
the question whether the applicant couples have been denied the equal
protection of the laws in violation of
article I, section 5 of the Hawaii Constitution."[fn16] The Court's amicus
respectfiilly submits that the
plurality's assumption, upon which is predicated the entire equal protection
analysis that follows, is
fundamentally flawed because neither the letter nor the spirit of
conventional equal protection or Equal
Rights Amendment jurisprudence mandate such a conclusion.
The Hawaii Supreme Court has repeatedly noted that in order to be held
to be in accord with equal
protection, a legislative classification must afford "like treatrnent" to
individuals who are "similarly
circurnstanoed" or "similarly situated" Shibuva v. Architects Hawaii Ltd.,
65 Haw. 26, 647 P.2d 276
(1982); Fujioka v. Kam. 55 Haw. 7, 514 P.2d 568 (1973); Mahiai v. Suwa 69
Haw. 349, 742 P.2d 359
(1987). Simply put, lawmakers must "treat like things in a like manner."
State v. Bloss 62 Haw. 147, 157,
613 P.2d 354, 360 (1980). Cf Michael M. V. Superior Court 450 U.S. 464, 464
(1981) ("[T]his Court has
consistently upheld statutes where the gender classification is not
invidious, but rather realistically reflects
the fact that the sexes are not similarly situated in certain
circumstances.") The State's denial of marriage
licenses to Appeilces does not run afoul of this stricture, since an
individual desiring to marry aperson of
the same sex is not "similarly situated" with an individual desiring to
marry a person of the opposite sex,
and same-sex marriage is not a "like thing" with traditional heterosexual
marriage. To conclude otherwise
is to assume as true what the Baehr v. Lewin plurality found to be false;
that society in general has, in
times past or in the present, regarded same-sex unions or relationships as
fimdamentally comparable to
those of heterosexuals.
[fn16] Id. at 564, 852 P.2d at 60 (emphasis supplied).
7
Further, Appellees' contention that they have suffered discrimination
based upon their gender
requires the Court to consider their claims as same-sex couples, rather than
individuals. As individuals, no
one Appellee has been denied a marriage license based upon his or her sex,
but rather on his or her desire to
enter into a same-sex union; thus, the individual with standing to claim the
equal protection right has not
suffred discritnination based upon his or her sex, which is the sine qua non
of heightened scrutiny. Nor
does the reasoning in Loving v. Virginia supra, require a different
conclusion. The premise of Loving was
the Court's recognition that race is an irrelevant consideration for
legitimate marriage policy, and
consequently interracial marriages and same-race marriages are functionally
equal. Thus, "There is
patently no legitimate overriding purpose independent of invidious race
discrimination which justifies this
classification." 388 U.S. at 11. "By comparison, the claim that same-sex
relationships are equal to or
fungible with conventional heterosexual marriage relationships is stained at
best." Wardle, supra, at 80.
Further, neither the rationale for heightened equal protection review
nor the original intent behind
the Hawaii Equal Rights Amendment apply to the Appellees' claims. Gender
has been the basis for
heightened scrutiny because legislative classifications on the basis of sex
have served to perpetuate "archaic
and overbroad" stereotypes of the role of women, Schlesinger v. Ballard. 419
U.S. 498 , 508 (1975); "old
notions" of role typing, Stanton v. Stanton, 421 U.S. 7, 114-15 (1975); and
"increasingly outdated
misconceptions concerning' the role of females in the home rather than in
the 'marketplace and world of
ideas'." Craig v. Boren 429 U.S. 190, 198-99 (1976). Accord Ross v.
Stouffer Hotel Company (Hawaii)
Ltd Inc., 72 Haw. 350, at 358,816 P.2d 302, at 306 (civil rights statutes
are intended to prevent offensive
or demeahing stereotypes). Clearly, the restriction of the marital estate
to heterosexual couples cannot be
viewed as an example of such stereotyping on the basis of gender abilities.
Similarly, the purpose and intent of the Hawaii Equal Rights Act
cannot reasonably be viewed as
requiring that a compelling state interest justify the restriction of the
marital estate:
Because constitutions derive their power and authority
from the people who drafted and adopt them, [w]e have long
recognized that the Hawai'i constitution must be construed
with due
8
regard to the intent of the framers and the people adopting
it, and the flindamental principle in interpreting a
constitutional provision is to give effect to that intent.
Hawaii State AFL-CIO v. Yoshino No.20267 March 24, 1997) at 4, quoting
Hirono v. Peabodv. 81
Haw. 230, 232, 915 P.2d 704, 706 (1996). The Hawaii Equal Rights Amendment,
passed in 1972, was
adopted for the purpose of "defin[ingj our State's conviction to provide
constitutional protection against
laws and official practices which treat men and women differently." 1972
House 3ournal at 353 (statement
of Rep. Saiki on S.B. No. 1408-72) (emphasis supplied). Certainly, neither
the framers of the Hawaii ERA
nor the citizens of the State intended or foresaw that the Amendment would
be applied to require that the
State prove a compelling interest to justify its adherence to traditional
marriage.
III. REVIEWED UNDER THE RATIONAL BASIS STANDARD THE DIRECTOR'S
DECISION IS SUPPORTED BY MORE THAN ADEOUATE EVIDENCE IN THE TRIAL COURT.
A rational basis review places the burden of proof upon the claimants
to demonstrate that the
classification is not rationally related to a legitimate governmental
interest. Haasegawa V. Maui Land and
Pineapple Co. 52 Haw. 327, 475 P.2d 679 (1970); In re Tax Appeal of Hawaiian
Land Co. Ltd. 53
Haw. 45,487 P.2d 1070 (1971). A review of the trial court's findings of fact
demonstrate that the
claimants failed to overcome this burden, and the court had more than ample
evidence on behalf of the
State to sustain the marriage statute. Legitimate governmental interests
sufficient to withstand rational
basis review include public health, safety and welfare, Alfred L. Snapp &
Son Inc. 458 U.S. 592 (1982)
and public morality, Bowers v. Hardwick 478 U.S. 186, 196 (1986). These
interests inform the State
marriage statute, and consequently the Court should find in favor of Appellants.
CONCLUSION
To date, at least twelve courts of various state and federal
jurisdictions have held that there is no
statutory, common law or constitutional basis for same-sex marriage.[fn17]
Hawaii now stands to become the
[fn17] See McConnell v. Nooner 547 F.2d 54, 56 (8th Cir. 1976) (there is no
"right to marry [someone of the same sex] under Minnesota law [or] under the
United States Constitution'); Adams v. Howerton 486 F. Supp. 1119, 1122,
1123 (CD. Cal. 1980), affid 673 F.2d 1036 (9di Cir.), cert. denied 458 U.S. 1111
(1982) (upholding denial of petition for `immediate relative' status of
Australian male who claimed to have
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9
only state to find constitutional implications in denying the marital estate
to homosexuals. For the Court to
so hold now would be to distort the doctrine of equal protection into an
unrecognizeable and tenuously
unpredictable form, and to disregard its duty "not 'to create substantive
constitutional rights in the name of
guaranteeing equal protection of the laws.'" Craig v. Boren 429 U.S. 190,
216, quoting San Antonio
School Dist. v. Rodriguez. 411 U.S. 1, 33 (1973) (C.J. Burger, dissenting).
The Court's amicus
respectfully requests that this Honorable Court overrule the plurality
decision in Baehr v. Lewin and render
a decision in favor of Defendant-Appellant State of Hawaii.
DATED: Honolulu, Hawaii, April 11,1997.
/s/ STEVEN H. ADEN, ESQ.
Attorney for Amicus Curiae
THE RUTHERFORD INSTITUTE
[continued from page 9] married an American male in Colorado); Dean V.
District of Columbia. 653 A.2d 307 (D.C. 1995) (see discussion at p.2,
supra, nn. 5&6; Jones V. Hallahan 501 S.W.2d 588, 590 (Ky. 1973) (`the
relationship proposed by the appellants does not authorize the issuance of a
marriage license because what they propose is not amarriage'); Baker v.
Nelson 191 N.W.2d 185, 185-86, 187 (Minn. 1971), appeal diss'd, 409 U.S. 810
(1972) (interpreting marriage statute in light of `common usage" and
concluding that marriage must involve persons of the opposite sex); Frances
B. v.'Mark B., 355 N.Y.S.2d 712, 716 (Sup. Ct. 1974) (holding marriage
ceremony between a woman and another female who fraudulently held herself
out as a man a nullity; "marriage has always been considered as the union of
a man and a woman1"); Anonymous v. Anonymous. 325 N.Y.S.2d 499, 500 (Sup.
Ct. 1971) (declaring attempted marriage a nullity when a male
plaintiff unwittingly went through marriage ceremony with another man posing
as a woman: "'[t]he law makes no provision for a 'marriage' between persons
of the same sex [and marriage is and always has been a contract between a
man and a woman'); In re Ladrach, 513 N.E.2d 828, 832 (Ohio P. Ct. 1987)
(rejecting marriage license claim of a transsexual male and another male;
`there is not authority in Ohio for the issuance of a marriage license to
consummate a marriage between a postoperative male-to-female transsexual
person and a male person'); De Santo v. Bainsley 476 A.2d 952.954 (Pa.
Super. Ct. 1984) (refusing, in a divorce action, to recognize attempted
common law marriage between two men; 'common law marriage is limited to two
persons of opposite sex'); Singer v. Hara, 522 P.2d 1187 1190 (Wash. Ct.
App. 1974) (rejecting claims based on state Equal Rights Amendment and
othe[r] constitutional claims); Burkett v. Zablocki. 54 F.R.D. 626 (E.D.
Wis. 1972) (dismissing on procedural grounds claim of same-sex couple
seeking a marriage license); Jennings v. Jennings, 315 A.2d 816, 820 n.7
(Md. Ct. Spec. App. 1974 (declaring in dicta that 'Maryland does not
recognize a marriage between persons of the same sex'); In re Estate of
Cooper. 564 N.Y.S.2d 684, 687 (Sur. Ct. 1990); Slayton V. Texas. 633 5 .W.2d
934, 937 (Tex. Ct. App. 1982); cf M.T. v. J.T., 355 A.2d 204 (N.J. Super.
Ct. App. Div.) (allowing marriage of transsexual after finding that the
sexehange operation effected change of gender for marriage license
purposes), certification denied, 364 A.2d 1076 (1976).
10
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"I personally do not intend to stay in a politics
dominated by smearing and mudslinging--a politics
which has all too often been characteristic of
recent years in this country."
--Newt Gingrich, 1983
~~~~~
Fred and Martin
24 years,
yet strangers before
the law
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